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Precedent and citation of authority in family proceedings

Solicitor Advocate

Limits on citation of
cases

Rules about citation of authorities in civil proceedings
(including family proceedings) has not been updated since introduction of the
new administrative tribunals system (Tribunals, Courts and Enforcement Act
2007) and of the Family Court; and even before this development family courts
and judges were perhaps not as crisp in observation of the rules of citation
and precedent as they might be.

Practitioners must be aware that publishers routinely
publish cases which are of no precedent value, and which it is unlawful to
cite; though a case may be of press or other value. This is no criticism of a
publisher: often they receive the case from judges where it would be churlish
not to publish.
AB v CB [2014] EWHC 2998 (Fam) (see below) illustrates the point. Permission to appeal was refused
so that citation of the case is not permitted (as explained below); yet the
report is fully reported at least on Bailii, by
Jordans and by Family Law Week.

The questions which any practitioner must ask are: does a
particular case create any sort of precedent; and even if not, is it
permissible to cite the case considered in the light of the practice direction
(below)? If the answer to both these questions is no, then the case should not
be referred to in argument nor in court.

Citation of cases:
the
Practice Direction

A summary of what may not be cited in court can be found in Practice Direction of 9 April 2001: Citation
of Authorities
[2001] 1 WLR 1001 (this remains formal good practice in all
courts still). Save where a judgment clearly indicates that ‘it purports to
establish a new principle or to extend the present law’ (para 6.1) certain
categories of case may not be cited at all in court (para 6.2) (ie under
the
Practice Direction it is unlawful
to cite these cases):

applications attended by one party only;

applications for permission to appeal;

decisions which establish only that a case is
arguable;

all county court cases (there was no family
court then) save to deal with an issue not decided at higher level which
affects decisions at county court level.

It is therefore permissible to cite cases where there has
been a decision on the merits at High Court, Court of Appeal and Supreme Court
level. To this should probably be added decisions of the Family Court by a High
Court judge and higher (eg Sir James Munby P when he sits in the Family
Court) and decisions of the Upper Tribunal when a High Court Judge or higher
sits there (eg in
RC v Secretary of State
for Work and Pensions
[2009] UKUT 62 when Carnforth LJ (as he then
was) sat with UTJ Jacob on a child support appeal).
Article continues below...

A Guide to the Family Court and the Children and Families Act 2014

In the recently reported Family Division case of AB v CB, Mostyn J refused permission to appeal. He made further comments which found their way into the press (there can be no objection to that). As a case for citation, it is of no value (still less as a precedent): the judge refused permission to appeal (second category above). The case represents no more than the musings of one High Court Judge in the course of his refusal. Had Mostyn J given permission to appeal and then dismissed the appeal, that would be capable of citation; though, since the appeal was a decision on the facts and an exercise of judicial discretion, it is unlikely it would have been of precedent value. As it stands, however, and according to the Practice Direction (signed off by no less than Lord Woolf LCJ) not only is the case of no precedent value, it is bad practice to cite it (para 6.2).

Precedent law and citation

So what is precedent? In his book Rule of Law Tom Bingham (orse Lord Bingham of Cornhill) wrote of the role of High Court Judges moving the law ‘along a line’; and that most judges are reticent about doing this other than incrementally. A new point comes up and a judge must decide it. That surely is the criterion for a precedent: does a case ‘move the law along’? Does a case establish a new principle of law or of practice by which others may be bound?

This definition eliminates decisions on the facts or where discretion only is exercised (eg however large the sum of money involved or however interesting may be the judge’s view of after-acquired wealth or sexual partners). Such cases, if of a High Court Judge (and not eg where refusing permission to appeal) may be cited; but they are of no precedent value.

All judgments in inter partes proceedings – ie where a judge or judges are asked to make a decision on the merits of a case – above county court level (but including High Court Judges sitting in the Family Court or Upper Tribunal) are capable of citation; and even if a case is of no or limited precedent value. Citation is therefore defined by: (1) whether or not a case is decided on its merits; and (2) on the level of judge.

Sir James Munby P is encouraging Family Court Judges at all levels to submit for publication a variety of judgments; but it is likely that only those where a High Court (or higher, like Sir James) judge sits in the Family Court will any of these cases be permitted to be cited within the terms of Practice Direction of 9 April 2001: Citation of Authorities.The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.